Summary
In Cruz, an iron worker, along with five other workers, was attempting to move a steel beam, 20 feet long and weighing approximately 800 pounds, by pushing it over a dirt mound about 15 feet high. They were moving the beam by pushing it on top of another beam, and had moved the beam half way up the mound when the workers stopped for a moment.
Summary of this case from St. Lewis v. City of New YorkOpinion
No. 2055 15377/01.
November 27, 2007.
Order, Supreme Court, Bronx County (Paul A. Victor, J.), entered January 17, 2007, which denied defendant's motion for summary judgment dismissing the complaint for failure to serve a timely notice of claim or commence the action against the proper party, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.
Wallace D. Gossett, Brooklyn (Lawrence Heisler of counsel), for appellant.
Teperman Teperman, LLC, New York (Bruce R. Teperman of counsel), for respondent.
Before: Tom, J.P., Mazzarelli, Saxe, Marlow and Williams, JJ.
The record fails to support plaintiff's contention that the Metropolitan Transportation Authority (MTA) should be equitably estopped from claiming it is not the proper party defendant. That doctrine applies only "where a governmental subdivision acts or comports itself wrongfully or negligently, inducing reliance by a party who is entitled to rely and who changes his position to his detriment or prejudice" ( Bender v New York City Health Hosps. Corp., 38 NY2d 662, 668), and should be invoked sparingly and only under exceptional circumstances ( Luka v New York City Tr. Auth., 100 AD2d 323, 325, affd 63 NY2d 667).
"It is well settled, as a matter of law, that the functions of the MTA with respect to public transportation are limited to financing and planning, and do not include the operation, maintenance, and control of any facility" ( Cusick v Lutheran Med. Ctr., 105 AD2d 681, 681). Rather than misleading plaintiff, the MTA provided him with numerous indications that the wrong entity was being sued. Counsel for plaintiff was notified that a hearing would be held with the New York City Transit Authority (NYCTA) and communications were exchanged with that agency. In its answer, the MTA denied that they owned, operated, maintained or controlled the subway station where plaintiff was allegedly injured.
There was no basis for concluding that the conduct of the MTA lulled plaintiff into a false sense of security. As we recently noted in Polsky v Metropolitan Transp. Auth. ( 37 AD3d 243), "Clear precedent in a virtually identical situation holds that [NYCJTA's handling of the claim, together with MTA's answer denying ownership and control of the subway station, should have alerted plaintiff that he had sued the wrong party, that an estoppel therefore does not lie, and that the complaint should be dismissed." [See 14 Misc 3d 886.]